In the New South Wales Supreme Court in Application of a Local Health District: Re a Patient Fay [2016] NSWSC 624, Fay, a pregnant 19 year old woman with an intellectual disability with placental haematoma and progressive renal failure, was warned by her doctors that she was at significant risk of permanent cerebral damage and possibly death if her pregnancy continued. The medical advice had recommended that the pregnancy be terminated to allow more effective control of her blood pressure. It was made known that the foetus would not live if intervention occurred. She signed a consent form stating that if specific medical events were to cause impending death, then the baby would be delivered even if the baby’s life was at stake. Her doctors desired to treat her immediately instead of waiting for one of Fay’s nominated treatment-accepted events to occur.

The plaintiff appealed to enact the Court’s parens patriae jurisdiction.  The Court acknowledged that parens patriae adopts a parental protection of children and those who are incapable of making their own decisions based upon a legal disability and are in need of protection: Marion’s Case(1992) 175 CLR 218. Although the jurisdiction is directed towards the welfare of the person involved, it is meant to be exercised only in exceptional situations and used with considerable caution. Its use must be in consideration of the adult at hand and must not infringe upon the patient’s free will.

Generally, whenever there is a conflict between a capable adult’s exercise of the right of self-determination, and the State’s interest in the preservation of life, the right of the individual must prevail: Hunter and New England Area Health Service v A by his tutor T (2009) NSWCCA 242; 79 NSWLR 544; 204 A Crim R 315.

Exceptions may arise when the life of a viable foetus is at stake.  If both mother and child may be saved, the choice of intervention may be clear.

Sackar J held:

• This case turns on whether Fay had the requisite capacity to exercise her undoubted right of self-determination. A relevantly capable individual can consent to any medical treatment rendering its administration lawful. Otherwise the individual’s right to bodily integrity is protected by torts law.
• An adult is presumed to have capacity to consent to or refuse medical treatment unless or until that presumption is rebutted.
• There is a scale or spectrum of capacity. The nature of the decision and its importance are both highly relevant to any decision making process and an assessment of capacity.
• If a person is unable to comprehend and/or retain information which is material to the relevant decision, in particular the consequences of the decision, or the person is unable to use and weigh the information as part of the process of making the decision, then generally the person will be seen as incapable of exercising their right of self-determination.
• Notwithstanding that an adult appears to consent to a course the usual presumption can be rebutted if a decision has been obtained by duress or undue influence.
• As per Lord Donaldson in Re T (Adult: Refusal of Treatment) [1993] Fam 95, when considering the effect of outside influences two aspects can be of crucial importance. First, the strength of the will of the patient. One who is very tired, in pain or depressed will be much less able to resist having his will overborne than one who is rested, free from pain and cheerful.  Second, the relationship of the “persuader” to the patient may be of crucial importance. The influence of parents on their children or of one spouse on the other can be, but is by no means necessarily, much stronger than would be the case in other relationships.

In relation to this case, Fay’s mother played an incredibly impactful role in the questioning of Fay. Fay’s mother largely spoke for her and made her strong views known. During the questioning, it was deduced that even Fay’s mother had not entirely comprehended the possible effects a stroke may have on her daughter. From Fay’s lack of response and her mother’s overly protective attitude, Ms Dana McMullen, solicitor, was led to believe that neither person truly understood the situation.

One of the most insightful pieces of evidence in the case was the exchange between Fay and Ms Dana McMullen solicitor, who had originally been retained to act on behalf of Fay.

This exchange endorses the “teach back” method of asking a patient to repeat back in their own words what was explained in order to ascertain whether or not they understood the consent process.

The transcript is as follows:

“Q. Ms McMullen, are you able to just go through now the conversation that you had with Fay, doing your best to use the words used by each of you as the conversation progressed?

A. Yes. I introduced myself to Fay as Dana. I explained to her that I was a lawyer, and that I had been asked to come and speak with her to try to understand what she wanted to have happen to her. I asked her if she knew where she was. She said yes, she was at the [redacted] Hospital. I asked her if she knew why she was at the hospital. She said: Yes, my kidneys. I asked her if she knew what was wrong with her kidneys. She said: There is a tear in my kidney. I asked her if there was anything else the doctors were worried about. She said: I don’t know. I said: I know that you are pregnant. Do you know if the doctors are worried about your baby. She said: I don’t know. I said: Do you know why the lawyers are here. She said: I don’t know. I said: Do you know why the judge is here. She said: No. I explained to her that the Court was very worried that the right decisions were made for her, and that is why the lawyers and the judge had come to talk to her in hospital, to try to understand what she knew about what was happening for her. I asked her if she had heard any of the doctors say that she might have a stroke. She said: Yes. I said: Do you know what a stroke means. She said: Yes. I said: Can you tell me what a stroke means. She said: My aunty had one. I said: And what does that tell you about what a stroke means. She said: I don’t know. I said: Do you know the doctors are worried that you might die. She said: Yes. I said: Do you know that the doctors are worried that you might bleed inside. She said: Yes. I said: And if these things happen, you might not be able to get better. Do you understand that. She said: Yes. I said: Now that I have explained that to you, can you now tell me what the doctors are worried about. She said she didn’t know. She couldn’t explain it to me. I said to her that if her baby was born today, it would not live. She said: Okay. I said: If you wait a few weeks, it might live, but no one is sure. She said: Okay. I said: Can you explain what I have just told you back to me. She said: No. I said: The doctors think that it is best that you don’t keep your baby because if you do bad things might happen to your health and you can’t get better. She said: Okay. I said: The doctors don’t want you to keep your baby. Can you tell me what you think. She started to cry and asked for her mother to come in the room. I said to her that I could wait if she wanted to tell me. She continued to cry. I said: Do you want the chance to tell me what you want, or would you like me to leave. She said: I want my mother. I thanked her for her time and left.”

This confirmed that Fay had a severe lack of understanding and that her mother was the true decision-maker.

The psychiatrist recorded that she was unable to engage Fay in any discussion and formed the view that Fay was not able to demonstrate that she understood the medical condition and the various treatment choices. The psychiatrist was also of the view that Fay was not able to weigh up the various choices.

After an additional psychiatrist consulted Fay and her mother, similar conclusions were made.

The Court agreed that Fay did not adequately understand nor was capable of balancing or making an informed decision such as to permit her to refuse the treatment recommended. Intervention was lawfully executed.